Text of UT HB 334 (2024)

H.B. 334 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: S. Elder 6 6 01-18-24 11:13 AM 6 H.B. 334 1 WARNING LABEL AMENDMENTS 2 2024 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Brady Brammer 5 Senate Sponsor: ____________ 6 7 LONG TITLE 8 General Description: 9 This bill modifies provisions that create a cause of action for injury of a minor by 10 pornographic material. 11 Highlighted Provisions: 12 This bill: 13 < modifies certain exemptions for liability for entities for a cause of action for injury 14 of a minor by pornographic material; 15 < changes provisions of the safe harbor protections for liability for a cause of action 16 for injury of a minor by pornographic material; 17 < clarifies who must give a warning of the harmful impact of exposing pornographic 18 material to a minor; and 19 < makes technical changes. 20 Money Appropriated in this Bill: 21 None 22 Other Special Clauses: 23 None 24 Utah Code Sections Affected: 25 AMENDS: 26 78B-6-2102, as enacted by Laws of Utah 2017, Chapter 464 27 78B-6-2103, as last amended by Laws of Utah 2020, Chapter 442 *HB0334* H.B. 334 01-18-24 11:13 AM - 2 - 28 78B-6-2105, as enacted by Laws of Utah 2020, Chapter 442 29 30 Be it enacted by the Legislature of the state of Utah: 31 Section 1. Section 78B-6-2102 is amended to read: 32 78B-6-2102. Exemptions. 33 (1) If the conditions of Subsection (2) are met, this part does not apply to: 34 (a) the following, as defined in the Communications Act of 1934, as amended: 35 (i) an interactive computer service; 36 (ii) a telecommunications service, information service, or mobile service, including a 37 commercial mobile service; or 38 (iii) a multichannel video programming distributor; 39 (b) an Internet service provider; 40 (c) a provider of an electronic communications service; 41 (d) a distributor of Internet-based video services; 42 (e) a host company as defined in Section 76-10-1230; or 43 (f) a distributor of electronic or computerized game software that users manipulate 44 through interactive devices. 45 (2) This part does not apply to an entity described in Subsection (1) if: 46 (a) the distribution of pornographic material by the entity occurs only incidentally 47 through the entity's function of: 48 (i) transmitting or routing data from one person to another person; 49 (ii) providing a connection between one person and another person; or 50 (iii) providing data storage space or data caching to a person; and 51 (b) the entity does not intentionally aid or abet in the distribution of the pornographic 52 material[; and]. 53 [(c) the entity does not knowingly receive from or through a person who distributes the 54 pornographic material a fee greater than the fee generally charged by the entity, as a specific 55 condition for permitting the person to distribute the pornographic material.] 56 Section 2. Section 78B-6-2103 is amended to read: 57 78B-6-2103. Liability -- Safe harbor. 58 (1) A person who is not exempt under Section 78B-6-2102, and who [predominately] 01-18-24 11:13 AM H.B. 334 - 3 - 59 distributes or otherwise [predominately] provides pornographic material to consumers is liable 60 to a person if: 61 (a) at the time the pornographic material is viewed by the person, the person is a minor; 62 and 63 (b) the pornographic material is the proximate cause for the person being harmed 64 physically or psychologically, or by emotional or medical illnesses as a result of that 65 pornographic material. 66 (2) Nothing in this part affects any private right of action existing under other law, 67 including contract. 68 (3) Notwithstanding Subsection (1), a person who distributes or otherwise provides 69 pornographic material is not liable under this section if the person who distributes or otherwise 70 provides pornographic material: 71 (a) provides a warning that: 72 (i) is conspicuous; 73 (ii) appears before the pornographic material can be accessed; and 74 (iii) consists of a good faith effort to warn persons accessing the pornographic material 75 that the pornographic material may be harmful to minors; and 76 (b) makes a good faith effort to verify the age of a person accessing the pornographic 77 material. 78 (4) Subsection (3) may not be interpreted as exempting a person from complying with 79 Title 13, Chapter 39, Child Protection Registry. 80 (5) (a) Notwithstanding Section 78B-6-2105, a person who is not exempt under 81 Section 78B-6-2102, and who [predominately] distributes or otherwise [predominately] 82 provides obscene material to consumers without a warning label or without the metadata 83 described in Subsection 78B-6-2105(3)(b) is not liable if the person demonstrates reasonable 84 efforts to determine the location of recipients of obscene material within the state and the 85 placement of warning labels on material that enters the state. Reasonable efforts shall result in 86 a compliance rate that exceeds 75% of the content believed to enter the state within the shorter 87 of six months prior to any claim, or from May 12, 2020, to the time of the claim. Proof of 88 reasonable efforts shall remove liability only for the type of compliance for which reasonable 89 efforts have been proven. H.B. 334 01-18-24 11:13 AM - 4 - 90 (b) The use of virtual private networks or similar technology by the consumer to hide 91 the consumer's location may not be included in a compliance rate calculation. 92 (6) Notwithstanding Section 78B-6-2105, a video game without a warning label is not 93 liable if it has a rating of the Entertainment Software Rating Board or equivalent, as long as it 94 also explicitly provides notice of the content as part of the rating. 95 Section 3. Section 78B-6-2105 is amended to read: 96 78B-6-2105. Civil action for enforcement -- Penalties. 97 (1) A person who [predominately] distributes or otherwise [predominately] provides 98 pornographic material to consumers [with the intent to earn revenue or profit directly or 99 indirectly from the distribution] may not distribute any obscene material or performance as 100 defined in Section 76-10-1203 without first giving a clear and reasonable warning of the 101 harmful impact of exposing minors to the material or performance. 102 (2) The warning of the harm shall be prominently displayed in the following form: 103 STATE OF UTAH WARNING 104 Exposing minors to obscene material may damage or negatively impact minors. 105 [(2)] (3) (a) For print publications created after May 12, 2020, the warning in 106 Subsection [(1)] (2) shall be placed in clear, readable type on the cover of each publication 107 which includes material as defined in Section 76-10-1201. 108 (b) For digital publications: 109 (i) the warning in Subsection [(1)] (2) shall be displayed in searchable text format and 110 for at least five seconds prior to the display of any video or each image which includes material 111 as defined in Section 76-10-1201; or 112 (ii) if the website complies with Subsection 78B-6-2103(3), it is not required to display 113 the warning in Subsection [(1)] (2) prior to each video or image contained on the website. 114 [(3)] (4) A person who violates this section shall be liable for a civil penalty not to 115 exceed $2,500 per violation, plus filing fees and attorney fees, in addition to any other penalty 116 established by law, and enjoined from further violations. 117 (5) The civil penalty may be assessed and recovered in a civil action brought in any 118 court of competent jurisdiction. 119 (6) Each of the following violations shall create a separate liability per violation: 120 (a) the sale or display of potentially harmful content without the warning required in 01-18-24 11:13 AM H.B. 334 - 5 - 121 Subsection [(1)] (2), in accordance with Subsection [(2)] (3); or 122 (b) the absence of the following searchable text within the website's metadata - 123 utahobscenitywarning. 124 [(4)] (7) The determination by a court as to whether a person is distributing material 125 the state considers to be obscene material or performance as defined in Section 78B-6-1203 126 shall be proven by clear and convincing evidence. All other elements of proof shall be proven 127 by a preponderance of the evidence. 128 [(5)] (8) The court, in ordering payment, shall specify each amount for the civil 129 penalty, filing fees, and attorney fees. 130 [(6)] (9) In assessing the amount of a civil penalty for a violation of this chapter, the 131 court shall consider all of the following: 132 (a) the nature and extent of the violation; 133 (b) the number and severity of the violations; 134 (c) the economic effect of the penalty on the violator; 135 (d) whether the violator took good faith measures to comply with this chapter and 136 when those measures were taken; 137 (e) the willfulness of the violator's misconduct; 138 (f) the deterrent effect that the imposition of the penalty would have on both the 139 violator and the regulated community as a whole; and 140 (g) any other factor that the court determines justice requires. 141 [(7)] (10) Actions pursuant to this section may be brought by the attorney general's 142 office in the name of the people of the state or by a private person in accordance with 143 Subsection [(8)] (11). 144 [(8)] (11) A private person may bring an action in the public interest pursuant to this 145 section if: 146 (a) the person has served notice of an alleged violation of Section 78B-6-2103 on the 147 alleged violator and the attorney general's office; 148 (b) the attorney general's office has not provided a letter to the noticing party within 60 149 days of receipt of the notice of an alleged violation indicating that: 150 (i) an action is currently being pursued or will be pursued by the attorney general's 151 office regarding the violation; or H.B. 334 01-18-24 11:13 AM - 6 - 152 (ii) the attorney general believes that there is no merit to the action; and 153 (c) the alleged violator has not responded to the notice of alleged violation or returned 154 the proof of compliance form provided in Subsection [(14)] (17). 155 [(9)] (12) If a lawsuit is commenced, the plaintiff may include additional violations in 156 the claim that are discovered through the discovery process. 157 [(10)] (13) Notice of the alleged violation shall be executed by the attorney for the 158 noticing party, or by the noticing party, if the noticing party is not represented by an attorney, 159 and include a notice of alleged violation. The notice of alleged violation shall: 160 (a) state that the person executing the notice believes that there is a violation; and 161 (b) provide factual information sufficient to establish the basis for the alleged violation. 162 [(11)] (14) A person who serves a notice of alleged violation identified in Subsection 163 [(10)] (13) shall complete and provide to the alleged violator at the time the notice of alleged 164 violation is served, a notice of special compliance procedure and proof of compliance form 165 pursuant to Subsection [(14)] (17). The person may file an action against the alleged violator, 166 or recover from the alleged violator if: 167 (a) the notice of alleged violation alleges that the alleged violator failed to provide a 168 clear and reasonable warning as required under Subsection (1); and 169 (b) within 14 days after receipt of the notice of alleged violation, the alleged violator 170 has not: 171 (i) corrected the alleged violation and all similar violations known to the alleged 172 violator; 173 (ii) agreed to pay a penalty for the alleged violation in the amount of $500 per 174 violation; and 175 (iii) notified, in writing, the noticing party that the violation has been corrected. 176 [(12)] (15) The written notice required in Subsection [(11)(b)(iii)] (14)(b)(iii) shall be 177 the notice of special compliance procedure and proof of compliance form specified in 178 Subsection [(14)] (17). The alleged violator shall deliver the civil penalty to the noticing party 179 within 30 days of receipt of the notice of alleged violation. 180 [(13)] (16) The attorney general shall review the notice of alleged violation and may 181 confer with the noticing party. If the attorney general believes there is no merit to the action, 182 the attorney general shall, within 45 days of receipt of the notice of alleged violation, provide a 01-18-24 11:13 AM H.B. 334 - 7 - 183 letter to the noticing party and the alleged violator stating that the attorney general believes 184 there is no merit to the action. 185 [(14)] (17) The notice required to be provided to an alleged violator pursuant to 186 Subsection [(11)] (14) shall be presented as follows: 187 Date: 188 Name of Noticing Party or attorney for Noticing Party: 189 Address: 190 Phone number: 191 SPECIAL COMPLIANCE PROCEDURE 192 PROOF OF COMPLIANCE 193 You are receiving this form because the Noticing Party listed above has alleged that you 194 are in violation of Utah Code Section 78B-6-2103. 195 The Noticing Party may bring legal proceedings against you for the alleged violation 196 checked below if: 197 (1) you have not actually taken the corrective steps that you have certified in this form; 198 (2) the Noticing Party has not received this form at the address shown above, 199 accurately completed by you, postmarked within 14 days of your receiving this notice; and 200 (3) the Noticing Party does not receive the required $500 penalty payment for each 201 violation alleged from you at the address shown above postmarked within 30 days of your 202 receiving this notice. 203 PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR 204 THE NOTICING PARTY 205 This notice of alleged violation is for failure to warn against an exposure to minors of 206 materials considered harmful to minors. (provide complete description of violation, including 207 when and where observed) 208 Date: 209 Name of Noticing Party or attorney for Noticing Party: 210 Address: 211 Phone number: 212 PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED 213 REPRESENTATIVE H.B. 334 01-18-24 11:13 AM - 8 - 214 Certification of Compliance 215 Accurate completion of this form will demonstrate that you are now in compliance with 216 Utah Code Section 78B-6-2103, for the alleged violation listed above. You must complete and 217 submit the form below to the Noticing Party at the address shown above, postmarked within 14 218 days of you receiving this notice. 219 I hereby agree to pay, within 30 days of receipt of this notice, a penalty of $500 for each 220 violation alleged to the Noticing Party only and certify that I have complied with by (check 221 only one of the following): 222 [ ] Posting a warning or warnings, and attaching a copy of that warning and a 223 photograph accurately showing its placement on the print or digital publication. 224 [ ] Eliminating the alleged exposure, and attaching a statement accurately describing 225 how the alleged exposure has been eliminated. 226 CERTIFICATION 227 My statements on this form, and on any attachments to it, are true, complete, and 228 correct to the best of my knowledge and belief and are made in good faith. I have carefully read 229 the instructions to complete this form. I understand that if I make a false statement on this 230 form, I may be subject to additional penalties under Utah Code Section 76-10-1206. 231 Signature of alleged violator or authorized representative: 232 Date: 233 Name and title of signatory: 234 [(15)] (18) An alleged violator may satisfy the conditions set forth in Subsection [(14)] 235 (17) only one time for a specific violation. 236 [(16)] (19) Notwithstanding Subsection [(14)] (17), the attorney general may file an 237 action pursuant to Subsection [(7)] (10) against an alleged violator. In any action, the amount 238 of any civil penalty for a violation shall be reduced to reflect any payment made by the alleged 239 violator to a private person in accordance with Subsection [(14)] (17) for the same alleged 240 violation. 241 [(17)] (20) Payments shall be made in accordance with this section. 242 (a) A civil penalty ordered by the court shall be paid to the plaintiff as directed by the 243 court. 244 (b) A penalty paid in accordance with the special compliance procedure in Subsection 01-18-24 11:13 AM H.B. 334 - 9 - 245 [(14)] (17) shall be made directly to the noticing party. 246 [(18)] (21) The Utah Office for Victims of Crime shall receive 50% of any penalty paid 247 in accordance with this section. Funds received shall be deposited [in] into the Crime Victim 248 Reparations Fund created in Section 63M-7-526. The penalty amount upon which the 50% is 249 calculated may not include attorney fees or costs awarded by the court. 250 (a) If the penalty is paid to a noticing party in accordance with Subsection [(14)] (17), 251 the noticing party shall remit the required amount along with a copy of the Special Compliance 252 Procedure document. 253 (b) If a civil penalty is ordered by the court, the plaintiff shall remit the required 254 amount along with a copy of the court order. 255 [(19)] (22) The attorney general's office shall provide to the Utah Office for Victims of 256 Crime a copy of all notices of alleged violations to which the attorney general's office did not 257 respond with a letter of no merit in accordance with Subsection [(13)] (16). 258 [(20)] (23) The court shall provide to the Utah Office for Victims of Crime a copy of 259 the court's order for payment. 260 [(21)] (24) The Utah Office for Victims of Crime shall: 261 (a) maintain a record of documents and payments submitted pursuant to Subsections 262 [(18), (19), and (20)] (21). (22). and (23); 263 (b) create and provide to the Legislature in odd-numbered years beginning November 264 2021, a report containing the following for the previous two years: 265 (i) the number of notices of alleged violations received from the attorney general's 266 office; 267 (ii) the number of court orders received; and 268 (iii) the total amount received and deposited into the Crime Victim Reparations Fund. 269 [(22)] (25) This section does not apply to: 270 (a) a person portrayed in obscene or pornographic material that is created, duplicated, 271 or distributed without the person's knowledge or consent; or 272 (b) a person who is coerced or blackmailed into distributing obscene or pornographic 273 material. 274 [(23)] (26) Beginning May 1, 2025, and at each five-year interval, the dollar amount of 275 the civil penalty provided in Subsection [(3)] (4) shall be adjusted by the Judicial Council H.B. 334 01-18-24 11:13 AM - 10 - 276 based on the change in the annual Consumer Price Index for the most recent five-year period 277 ending on December 31 of the previous year, and rounded to the nearest five dollars. The 278 attorney general shall publish the dollar amount of the civil penalty together with the date of 279 the next scheduled adjustment. 280 Section 4. Effective date. 281 This bill takes effect on May 1, 2024.

Enrolled Copy H.B. 334 1 WARNING LABEL AMENDMENTS 2024 GENERAL SESSION STATE OF UTAH Chief Sponsor: Brady Brammer Senate Sponsor: Todd D. Weiler 2 3 LONG TITLE 4 General Description: 5 This bill modifies provisions that create a cause of action for injury of a minor by 6 pornographic material. 7 Highlighted Provisions: 8 This bill: 9 ▸ modifies certain exemptions for liability for entities for a cause of action for injury of a 10 minor by pornographic material; 11 ▸ changes provisions of the safe harbor protections for liability for a cause of action for 12 injury of a minor by pornographic material; 13 ▸ clarifies who must give a warning of the harmful impact of exposing pornographic 14 material to a minor; and 15 ▸ makes technical changes. 16 Money Appropriated in this Bill: 17 None 18 Other Special Clauses: 19 None 20 Utah Code Sections Affected: 21 AMENDS: 22 78B-6-2102, as enacted by Laws of Utah 2017, Chapter 464 23 78B-6-2103, as last amended by Laws of Utah 2020, Chapter 442 24 78B-6-2105, as enacted by Laws of Utah 2020, Chapter 442 25 26 Be it enacted by the Legislature of the state of Utah: 27 Section 1. Section 78B-6-2102 is amended to read: H.B. 334 Enrolled Copy 28 78B-6-2102 . Exemptions. 29 (1) If the conditions of Subsection (2) are met, this part does not apply to: 30 (a) the following, as defined in the Communications Act of 1934, as amended: 31 (i) an interactive computer service; 32 (ii) a telecommunications service, information service, or mobile service, including a 33 commercial mobile service; or 34 (iii) a multichannel video programming distributor; 35 (b) an Internet service provider; 36 (c) a provider of an electronic communications service; 37 (d) a distributor of Internet-based video services; 38 (e) a host company as defined in Section 76-10-1230; or 39 (f) a distributor of electronic or computerized game software that users manipulate 40 through interactive devices. 41 (2) This part does not apply to an entity described in Subsection (1) if: 42 (a) the distribution of pornographic material by the entity occurs only incidentally 43 through the entity's function of: 44 (i) transmitting or routing data from one person to another person; 45 (ii) providing a connection between one person and another person; or 46 (iii) providing data storage space or data caching to a person; and 47 (b) the entity does not intentionally aid or abet in the distribution of the pornographic 48 material[; and] . 49 [(c) the entity does not knowingly receive from or through a person who distributes the 50 pornographic material a fee greater than the fee generally charged by the entity, as a 51 specific condition for permitting the person to distribute the pornographic material.] 52 Section 2. Section 78B-6-2103 is amended to read: 53 78B-6-2103 . Liability -- Safe harbor. 54 (1) A person who is not exempt under Section 78B-6-2102, and who [predominately ] 55 distributes or otherwise [predominately ]provides pornographic material to consumers is 56 liable to a person if: 57 (a) at the time the pornographic material is viewed by the person, the person is a minor; 58 and 59 (b) the pornographic material is the proximate cause for the person being harmed 60 physically or psychologically, or by emotional or medical illnesses as a result of that 61 pornographic material. - 2 - Enrolled Copy H.B. 334 62 (2) Nothing in this part affects any private right of action existing under other law, 63 including contract. 64 (3) Notwithstanding Subsection (1), a person who distributes or otherwise provides 65 pornographic material is not liable under this section if the person who distributes or 66 otherwise provides pornographic material: 67 (a) provides a warning that: 68 (i) is conspicuous; 69 (ii) appears before the pornographic material can be accessed; and 70 (iii) consists of a good faith effort to warn persons accessing the pornographic 71 material that the pornographic material may be harmful to minors; and 72 (b) makes a good faith effort to verify the age of a person accessing the pornographic 73 material. 74 (4) Subsection (3) may not be interpreted as exempting a person from complying with Title 75 13, Chapter 39, Child Protection Registry. 76 (5) (a) Notwithstanding Section 78B-6-2105, a person who is not exempt under Section 77 78B-6-2102, and who [predominately ]distributes or otherwise [predominately ] 78 provides obscene material to consumers without a warning label or without the 79 metadata described in Subsection 78B-6-2105(3)(b) is not liable if the person 80 demonstrates reasonable efforts to determine the location of recipients of obscene 81 material within the state and the placement of warning labels on material that enters 82 the state. Reasonable efforts shall result in a compliance rate that exceeds 75% of the 83 content believed to enter the state within the shorter of six months prior to any claim, 84 or from May 12, 2020, to the time of the claim. Proof of reasonable efforts shall 85 remove liability only for the type of compliance for which reasonable efforts have 86 been proven. 87 (b) The use of virtual private networks or similar technology by the consumer to hide the 88 consumer's location may not be included in a compliance rate calculation. 89 (6) Notwithstanding Section 78B-6-2105, a video game without a warning label is not 90 liable if it has a rating of the Entertainment Software Rating Board or equivalent, as long 91 as it also explicitly provides notice of the content as part of the rating. 92 Section 3. Section 78B-6-2105 is amended to read: 93 78B-6-2105 . Civil action for enforcement -- Penalties. 94 (1) A person who [predominately ]distributes or otherwise [predominately ]provides 95 pornographic material to consumers [with the intent to earn revenue or profit directly or - 3 - H.B. 334 Enrolled Copy 96 indirectly from the distribution ]may not distribute any obscene material or performance 97 as defined in Section 76-10-1203 without first giving a clear and reasonable warning of 98 the harmful impact of exposing minors to the material or performance. 99 (2) The warning of the harm shall be prominently displayed in the following form: 100 STATE OF UTAH WARNING 101 Exposing minors to obscene material may damage or negatively impact minors. 102 [(2)] (3) (a) For print publications created after May 12, 2020, the warning in Subsection [ 103 (1)] (2) shall be placed in clear, readable type on the cover of each publication which 104 includes material as defined in Section 76-10-1201. 105 (b) For digital publications: 106 (i) the warning in Subsection [(1)] (2) shall be displayed in searchable text format and 107 for at least five seconds prior to the display of any video or each image which 108 includes material as defined in Section 76-10-1201; or 109 (ii) if the website complies with Subsection 78B-6-2103(3), it is not required to 110 display the warning in Subsection [(1)] (2) prior to each video or image contained 111 on the website. 112 [(3)] (4) A person who violates this section shall be liable for a civil penalty not to exceed 113 $2,500 per violation, plus filing fees and attorney fees, in addition to any other penalty 114 established by law, and enjoined from further violations. 115 (5) The civil penalty may be assessed and recovered in a civil action brought in any court of 116 competent jurisdiction. 117 (6) Each of the following violations shall create a separate liability per violation: 118 (a) the sale or display of potentially harmful content without the warning required in 119 Subsection [(1) ,] (2), in accordance with Subsection [(2) ] (3); or 120 (b) the absence of the following searchable text within the website's metadata - 121 utahobscenitywarning. 122 [(4)] (7) The determination by a court as to whether a person is distributing material the 123 state considers to be obscene material or performance as defined in Section 78B-6-1203 124 shall be proven by clear and convincing evidence. All other elements of proof shall be 125 proven by a preponderance of the evidence. 126 [(5)] (8) The court, in ordering payment, shall specify each amount for the civil penalty, 127 filing fees, and attorney fees. 128 [(6)] (9) In assessing the amount of a civil penalty for a violation of this chapter, the court 129 shall consider all of the following: - 4 - Enrolled Copy H.B. 334 130 (a) the nature and extent of the violation; 131 (b) the number and severity of the violations; 132 (c) the economic effect of the penalty on the violator; 133 (d) whether the violator took good faith measures to comply with this chapter and when 134 those measures were taken; 135 (e) the willfulness of the violator's misconduct; 136 (f) the deterrent effect that the imposition of the penalty would have on both the violator 137 and the regulated community as a whole; and 138 (g) any other factor that the court determines justice requires. 139 [(7)] (10) Actions pursuant to this section may be brought by the attorney general's office in 140 the name of the people of the state or by a private person in accordance with Subsection [ 141 (8) ] (11). 142 [(8)] (11) A private person may bring an action in the public interest pursuant to this section 143 if: 144 (a) the person has served notice of an alleged violation of Section 78B-6-2103 on the 145 alleged violator and the attorney general's office; 146 (b) the attorney general's office has not provided a letter to the noticing party within 60 147 days of receipt of the notice of an alleged violation indicating that: 148 (i) an action is currently being pursued or will be pursued by the attorney general's 149 office regarding the violation; or 150 (ii) the attorney general believes that there is no merit to the action; and 151 (c) the alleged violator has not responded to the notice of alleged violation or returned 152 the proof of compliance form provided in Subsection [(14) ] (17). 153 [(9)] (12) If a lawsuit is commenced, the plaintiff may include additional violations in the 154 claim that are discovered through the discovery process. 155 [(10)] (13) Notice of the alleged violation shall be executed by the attorney for the noticing 156 party, or by the noticing party, if the noticing party is not represented by an attorney, and 157 include a notice of alleged violation. The notice of alleged violation shall: 158 (a) state that the person executing the notice believes that there is a violation; and 159 (b) provide factual information sufficient to establish the basis for the alleged violation. 160 [(11)] (14) A person who serves a notice of alleged violation identified in Subsection [(10) ] 161 (13) shall complete and provide to the alleged violator at the time the notice of alleged 162 violation is served, a notice of special compliance procedure and proof of compliance 163 form pursuant to Subsection [(14) ] (17). The person may file an action against the - 5 - H.B. 334 Enrolled Copy 164 alleged violator, or recover from the alleged violator if: 165 (a) the notice of alleged violation alleges that the alleged violator failed to provide a 166 clear and reasonable warning as required under Subsection (1); and 167 (b) within 14 days after receipt of the notice of alleged violation, the alleged violator has 168 not: 169 (i) corrected the alleged violation and all similar violations known to the alleged 170 violator; 171 (ii) agreed to pay a penalty for the alleged violation in the amount of $500 per 172 violation; and 173 (iii) notified, in writing, the noticing party that the violation has been corrected. 174 [(12)] (15) The written notice required in Subsection [(11)(b)(iii) ] (14)(b)(iii) shall be the 175 notice of special compliance procedure and proof of compliance form specified in 176 Subsection [(14) ] (17). The alleged violator shall deliver the civil penalty to the noticing 177 party within 30 days of receipt of the notice of alleged violation. 178 [(13)] (16) The attorney general shall review the notice of alleged violation and may confer 179 with the noticing party. If the attorney general believes there is no merit to the action, 180 the attorney general shall, within 45 days of receipt of the notice of alleged violation, 181 provide a letter to the noticing party and the alleged violator stating that the attorney 182 general believes there is no merit to the action. 183 [(14)] (17) The notice required to be provided to an alleged violator pursuant to Subsection [ 184 (11) ] (14) shall be presented as follows: 185 Date: 186 Name of Noticing Party or attorney for Noticing Party: 187 Address: 188 Phone number: 189 SPECIAL COMPLIANCE PROCEDURE 190 PROOF OF COMPLIANCE 191 You are receiving this form because the Noticing Party listed above has alleged that you are 192 in violation of Utah Code Section 78B-6-2103. 193 The Noticing Party may bring legal proceedings against you for the alleged violation 194 checked below if: 195 (1) you have not actually taken the corrective steps that you have certified in this form; 196 (2) the Noticing Party has not received this form at the address shown above, accurately 197 completed by you, postmarked within 14 days of your receiving this notice; and - 6 - Enrolled Copy H.B. 334 198 (3) the Noticing Party does not receive the required $500 penalty payment for each 199 violation alleged from you at the address shown above postmarked within 30 days of your 200 receiving this notice. 201 PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR 202 THE NOTICING PARTY 203 This notice of alleged violation is for failure to warn against an exposure to minors of 204 materials considered harmful to minors. (provide complete description of violation, including 205 when and where observed) 206 Date: 207 Name of Noticing Party or attorney for Noticing Party: 208 Address: 209 Phone number: 210 PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED 211 REPRESENTATIVE 212 Certification of Compliance 213 Accurate completion of this form will demonstrate that you are now in compliance with 214 Utah Code Section 78B-6-2103, for the alleged violation listed above. You must complete and 215 submit the form below to the Noticing Party at the address shown above, postmarked within 14 216 days of you receiving this notice. 217 I hereby agree to pay, within 30 days of receipt of this notice, a penalty of $500 for each 218 violation alleged to the Noticing Party only and certify that I have complied with by (check 219 only one of the following): 220 [ ] Posting a warning or warnings, and attaching a copy of that warning and a photograph 221 accurately showing its placement on the print or digital publication. 222 [ ] Eliminating the alleged exposure, and attaching a statement accurately describing how 223 the alleged exposure has been eliminated. 224 CERTIFICATION 225 My statements on this form, and on any attachments to it, are true, complete, and correct to 226 the best of my knowledge and belief and are made in good faith. I have carefully read the 227 instructions to complete this form. I understand that if I make a false statement on this form, I 228 may be subject to additional penalties under Utah Code Section 76-10-1206. 229 Signature of alleged violator or authorized representative: 230 Date: 231 Name and title of signatory: - 7 - H.B. 334 Enrolled Copy 232 [(15)] (18) An alleged violator may satisfy the conditions set forth in Subsection [(14) ] (17) 233 only one time for a specific violation. 234 [(16)] (19) Notwithstanding Subsection [(14) ] (17), the attorney general may file an action 235 pursuant to Subsection [(7) ] (10) against an alleged violator. In any action, the amount 236 of any civil penalty for a violation shall be reduced to reflect any payment made by the 237 alleged violator to a private person in accordance with Subsection [(14)] (17) for the 238 same alleged violation. 239 [(17)] (20) Payments shall be made in accordance with this section. 240 (a) A civil penalty ordered by the court shall be paid to the plaintiff as directed by the 241 court. 242 (b) A penalty paid in accordance with the special compliance procedure in Subsection [ 243 (14) ] (17) shall be made directly to the noticing party. 244 [(18)] (21) The Utah Office for Victims of Crime shall receive 50% of any penalty paid in 245 accordance with this section. Funds received shall be deposited [in ] into the Crime 246 Victim Reparations Fund created in Section 63M-7-526. The penalty amount upon 247 which the 50% is calculated may not include attorney fees or costs awarded by the court. 248 (a) If the penalty is paid to a noticing party in accordance with Subsection [(14) ] (17), 249 the noticing party shall remit the required amount along with a copy of the Special 250 Compliance Procedure document. 251 (b) If a civil penalty is ordered by the court, the plaintiff shall remit the required amount 252 along with a copy of the court order. 253 [(19)] (22) The attorney general's office shall provide to the Utah Office for Victims of 254 Crime a copy of all notices of alleged violations to which the attorney general's office 255 did not respond with a letter of no merit in accordance with Subsection [(13) ] (16). 256 [(20)] (23) The court shall provide to the Utah Office for Victims of Crime a copy of the 257 court's order for payment. 258 [(21)] (24) The Utah Office for Victims of Crime shall: 259 (a) maintain a record of documents and payments submitted pursuant to Subsections [ 260 (18), (19), and (20) ] (21), (22), and (23); 261 (b) create and provide to the Legislature in odd-numbered years beginning November 262 2021, a report containing the following for the previous two years: 263 (i) the number of notices of alleged violations received from the attorney general's 264 office; 265 (ii) the number of court orders received; and - 8 - Enrolled Copy H.B. 334 266 (iii) the total amount received and deposited into the Crime Victim Reparations Fund. 267 [(22)] (25) This section does not apply to: 268 (a) a person portrayed in obscene or pornographic material that is created, duplicated, or 269 distributed without the person's knowledge or consent; or 270 (b) a person who is coerced or blackmailed into distributing obscene or pornographic 271 material. 272 [(23)] (26) Beginning May 1, 2025, and at each five-year interval, the dollar amount of the 273 civil penalty provided in Subsection [(3) ] (4) shall be adjusted by the Judicial Council 274 based on the change in the annual Consumer Price Index for the most recent five-year 275 period ending on December 31 of the previous year, and rounded to the nearest five 276 dollars. The attorney general shall publish the dollar amount of the civil penalty together 277 with the date of the next scheduled adjustment. 278 Section 4. Effective date. 279 This bill takes effect on May 1, 2024. - 9 -